Benjamin v. Gill

(By two judges). — 1. Where A, by his will, devised a tract of land to be sold and the proceeds to be divided between B and C, and appointed B his executor, and B proved the will and took out letters, and went, into possession of the premises, A having lived thereon at his death, and B afterwards died: Held, that, in an action of ejectment, brought by the administrator de bonis non of A against the widow of B and his administrator, the defendants were estopped from setting up title in B, acquired previously to the death of A. Whether the title is good or bad, the defendants cannot set up a title adverse to that under which B got possession of the premises. 2. A trustee or executor cannot, after he has accepted the trust, set up a title averse to the trust. 3. Where land is devised to B and C, and the testator, after making his will, conveys the land by deed to B, whom he appoints his executor; and who qualifies as such after the death of testator. Quere, whether B it estopped from denying that the land passed by the will. 4. It need not appear when the Court adjourned, if it appear that the bill of exceptions was tendered to the Judge, and certified within thirty days from the beginning of the Court. (R. See end of report.) 5th March, 1872.

Estoppel. Landlord and Tenant. Ademption of Legacies. Before Judge Johnson. Marion Superior Court. October Term, 1871. Gill, as administrator, de bonis non oum testamento annexo, of James Perryman, brought ejectment against Mrs. Perry-man and E. H. Worrill, as administrators of A. G. Perry-man, son of James Perryman. Plaintiff showed that James Perryman had title to the premises in his lifetime, and that he died in 1864, testate. His will was introduced. It was made in 1854. By it the premises in dispute were devised to his said son and Mrs. Jones, and said son and Jones were nominated as his executors. It was shown that in January, 1865, said son propounded James Perryman’s will for probate, had it admitted to record, took the usual oath as executor, and obtained letters of executorship. It was shown that the son, A. G. Perryman, took possession of the premises in 1865, and his widow in 1869. With proof as to mesne profits, plaintiff rested the cause. Defendant’s counsel read in evidence a deed of gift from James Perryman, made in 1856, conveying said premises to said son, A. G. Perryman, but reserving the use and occupation thereof during his life. They offered to prove that from the death of the father, the son, up to the date, of his own death, occupied, used and held the premises, claiming them as his own. This evidence was rejected. The Court charged the jury that A. G. Perryman’s representatives were estopped from claiming adversely to said James Perryman’s representative if said premises were devised by the will and A. G. Perryman had proven the will and taken an oath to execute it. The jury found for the plaintiff. The rejection of said evidence, and said charge are assigned as error. (Defendant’s counsel moved to dismiss this case because it did not appear when the Court below adjourned. But the motion was overruled, because it appeared that the bill of exceptions was tendered to the Judge and certified within thirty days from the beginning of the Court.) As to estoppel: 1 Jarman on W., 13; 21 Ga. R., 21, 45; 2 Sm. L. Cas., 453, 555; 5 Cush. R., 596, 601; 15 La. An. R., 679; R. Code, section 3700; 23 Ga. R., 520, 526. This was an adeemed legacy : R. Code, section 2427.